Proposed PQ education access restrictions 'highly contestable': rights lawyer

By Joel Goldenberg, August 22nd, 2012

The Parti Québécois's proposal to extend its English education access restrictions to CEGEPs would be “highly contestable” in the courts, says rights lawyer Brent Tyler.
Currently, access to public English elementary and high schools is restricted to those whose parents or sibling had the majority of their education in Canada, in English.
Tyler, who has challenged provisions of Bill 101 numerous times over the years, said the proposed restrictions can be challenged for the same reasons francophone parents challenged the current restrictions more than 10 years ago.
“It would be discrimination based on ancestry - the circumstances of the birth of a child, where their parents got their language of instruction,” the lawyer said. “The reason we lost [the francophone parents' case] was because of Section 23 of the Canadian Charter of Rights and Freedoms [guaranteeing minority language rights] The court found we couldn't use one part of the constitution - equality rights and discrimination prohibitions - to nullify the special regime created by Section 23,” to enable the children of those educated in English in Canada - not just Quebec as in the original Bill 101 - to attend English public schools.
“But Section 23 doesn't apply to CEGEPs. The one and only reason we lost the francophone parents' case was because of the existence of a constitutional guarantee. At a level of instruction - English public CEGEPs - where Section 23 clearly does not apply, the argument based on discrimination based on ancestry will, in my opinion, be very powerful.”
Tyler also said the proposal to extend the access restriction to English CEGEPs and adult education courses would have a wider impact than is generally understood.
“A lot of kids who are struggling in the French system can leave the system at 16 and switch to the adult education program in English, and at least get themselves a high school leaving certificate,” Tyler explained. “The chances are very slim they'll go further, but at least they'll get the certificate through the English adult education courses.
“If [the proposed expanded restrictions] are going to exclude them, you're going to have a whole bunch of children from other countries - mostly from the Caribbean - that aren't even going to be able to get a high school leaving certificate.”
Tyler also pointed out that English CEGEPs have been increasing their admissions standards because of the number of allophone and francophone applicants.
“They are actually refusing people who are English speaking, those who would be able to attend under the PQ's proposed regime. If the demand from allophones and francophones was to be reduced to zero, there would be room for the English speakers.”
Tyler is pleased the Fédération des CEGEPs is against the PQ English CEGEP access proposal.
“You'd think it would be in their interest to be in favour of the PQ proposal,” he said. “On the face of it, it would appear to cause an increase in French CEGEP enrolment. But their argument is based on one of principle - you cannot tell adults where they should go in terms of CEGEPs - they're publicly funded and they're adults. That's a very strong argument and very telling.
“But legally, you have to get into discrimination based on ancestry to get to the heart of the matter.”